By Ritabh Singh, 4th Year Law Student, Government Law College, Mumbai,
email@example.com | October 25, 2022
The Hon’ble Supreme Court judgment pronounced on the 28th September 2022, in X v. The Principal Secretary , declared that all woman have a right to safe abortion upto 24 weeks. The Hon’ble Supreme Court declared that the distinction based on the marital status of a women in Rule 3B(c) of the Medical Termination of Pregnancy Rules, 2003 (MTP Rules) is “artificial and constitutionally unsustainable”, and single women with pregnancies upto 24 weeks cannot be denied safe and legal abortion. Section 3B(c) allows termination of pregnancy upto 24 weeks if there is change of marital status during the ongoing pregnancy (widowhood and divorce). The Court also recognised marital rape, a much contraversal topic, as a legal ground for abortion under Rule 3B(a).
Looking back at the history of abortion in India, there has always existed social stigma against abortion, even when the women is married. Thus women were forced to choose an unsafe method of abortion, which seriously impacted the health of the woman, many cases resulting to death. In fact, about 8 women die each day due to unsafe abortions, and 67% of the abortions carried out are unsafe . The Medical Termination of Pregnancy Act, 1971 (MTP Act), was enacted to legalize abortions, and found its basis from the Abortion Act, 1967 passed in the United Kingdom. The MTP Act legalized abortions, and as years have passed, the legislature has made much more strict rules for who can terminate a pregnancy as people have shown preference for a male child over a female child. It is also imperative to note that the MTP Act is an exemption to Section 312 of the IPC .
The challenge to the provisions were made by a 25 year old single woman who wanted to terminate her pregnancy after the Delhi High Court stated that consensual relationships are not covered under MTP Rules 2003. The Hon’ble Supreme Court, in an order passed on 21th July 2022, allowed the petitioner to abort her 24 week pregnancy as allowing her an unwanted pregnancy would have been contrary to the intent of Section 3(2) of the MTP (Amended) Act, 2021. However, the Court further heard the matter as it dealt with a ‘substantive question of law’ which was – is the distinction between married and single women under Rule 3B(c) of the MTP Rules 2003 constitutionally valid?
As mentioned before, the Court held that the rule was infact discriminatory and violative of Article 14. The Court held that the law be given a purposive interpretation. In the MTP Act, Explanation 2 of Section 3(2) contained the following words –
“Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.”
The same were amended in 2021, and Explanation 1 of Section 3(2) says – “For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.”
The Court after interpreting the intention of the legislature held that the legislature intended to clarify the scope of Section 3(2) and recognized that pregnancies could happen outside marriage as well. Even the statement of objects and reasons of the MTP Amended act indicated that the primary concern was to increase access to safe and legal abortions. The statement of object and reasons also do not distinguish between married and unmarried women, thus encompassing all women.
The court held that Rule 3B(c) cannot be read in isolation and has to be read with other sub-clauses of 3B. The other sub-clauses are as follows –
(a) survivors of sexual assault or rape or incest;
(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];
(e) mentally ill women including mental retardation;
(f) the fetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and
(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.
The court held that none of these sub-clauses distinguish between married and unmarried women. Thus the court gave Section 3B(c) a purposive interpretation, read it with explanation 1 of Section 3(2) of the MTP (Amended) Act, 2021 and held that any woman can abort her pregnancy upto 24 weeks. The court held that such laws are ‘provider-centric’ laws and must be applied accordingly.
A landmark judgment on a sensitive issue has not only upheld bodily autonomy of women, but also accepted marital rape in the scope of abortion. This judgment has removed the unreasonable classification made by law. Laws cannot be static and must evolve as times change. After the Supreme Court of United States overturned Roe v. Wade , abortion rights became uncertain. The Supreme Court of India has rightly protected women’s right on abortion and her reproductive autonomy.
However, according to law, it is the Registered Medical Practitioner (RMP) who still holds strong power on a women who is seeking abortion, and even though the women can seek help in a Court of Law, RMPs still hold fundamental power in the choice of a women to terminate her pregnancy.
 SLP (C) No 12612 of 2022
 BMJ Global Health Reports
 Section 312 – Causing Miscarriage, IPC (1860)
 410 U.S. 113 (1973)